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Thursday, 25 August 1994
Page: 352

Senator SPINDLER (12.26 p.m.) —The Senate today is debating cognately the Criminal Code Bill 1994 and the Crimes Amendment Bill 1994. Both bills are directed towards codification at Commonwealth level of the criminal code. That objective is certainly supported by the Australian Democrats.

  We do note that the Criminal Code Bill does not come into effect until five years after the code receives royal assent. This matter was picked up by the scrutiny of bills committee and, indeed, it caused us some concern. If it should lie on the table for that long without being implemented, the question arises, obviously: why do we not just have an exposure draft? The minister explains that it is necessary to have a definitive view on the table, as it were, and to test the acceptance of the provisions in the bills by parliament. We accept that view.

  We welcome the reference of these bills to the Senate Standing Committee on Legal and Constitutional Affairs because, while we understand that the government has undertaken considerable consultation with the profession and with community groups, the report on those consultations was made available, as has the digest, only a couple of days ago. These bills deal with extremely important matters and we welcome the opportunity to widen the consultation on several aspects, not just the one mentioned by Senator Vanstone.

  Briefly, the Crimes Amendment Bill 1994 deals with a number of areas which the government feels should become law in the short term and not be put off for five years. There are three main areas. Firstly, the age of criminal responsibility: proposed section 4N provides that a child under 10 years of age cannot be liable for an offence against the law of the Commonwealth. Proposed section 4N(1) provides that children aged 10 years or more but under 14 can be criminally responsible for an offence only if the child knows that his or her conduct is wrong. Previously these provisions varied across Australian jurisdictions, so these reforms will help to provide greater consistency in determining a basic age for criminal responsibility.

  The second main area deals with what constitutes an attempt to commit an offence and the consequences that arise from undertaking such an attempt. The bill specifies that, to be found guilty of attempting an offence, the person's conduct must be more than merely preparatory. That test is obviously designed to catch cases where the defendant has the necessary fault element and has taken a step beyond mere preparation towards the perpetration of the offence without actually committing it.

  The third main area of the bill deals with what constitutes conspiracy, defining it in three subclauses to clause 73, and it appears to have been drafted in a way that discourages overuse. In general terms, the Australian Democrats welcome the provisions but, as I said before, I welcome the opportunity to test the views of the profession on these matters.

  The Criminal Code Bill 1994 will apply to all offences under the code, and to all other offences on or after the day occurring five years after the code receives royal assent. It deals with circumstances of criminal responsibility. The area of corporate criminal responsibility certainly needs some closer examination. The bill maintains certain defences for companies but makes companies accountable for general managerial responsibilities and policy. It provides that negligence may be proven by failure to provide adequate communication within the body corporate.

  Part 2.6 speaks of proof of criminal responsibility and sets out the relevant burdens of proof to be discharged by both the prosecution and the defence. The Australian Democrats welcome the bill which sees the beginning of a new era for Commonwealth criminal law by ensuring that those who are accused of federal offences are subject to the same law in all Australian jurisdictions. As the government has acknowledged, however, there are mutually opposed views on some aspects of the legislation and many of these are likely to generate considerable comment during this stage and after they have been passed.